State v. Gerrier

Superior Court of Maine, Kennebec

May 11, 2017

STATE OF MAINEv.Travis R. Gerrier, Defendant.

ORDER ON DEFENDANT'S MOTION TO SUPPRESS

This
matter comes before the court on the Defendant's motion
to suppress, originally filed on January 3, 2017, with an
amended motion filed on March 21, 2017. A hearing on this
motion was held on April 20, 2017. The State was represented
by Assistant District Attorney Michael Madigan, and the
Defendant was represented by Sherry Tash Esq. Both parties
were afforded ample opportunity to present evidence and
argument in support of their respective positions.

The
defendant is charged with one count of Gross Sexual Assault
(Class A), Unlawful Sexual Contact (Class B) and Furnishing
Liquor to a Minor, (Class D). The charges arose from alleged
conduct by the Defendant on the evening of June 3, 2015 in
Belgrade, Maine, involving a minor girl, (hereinafter C.F.)
who was 11 years of age at the time. The Defendant was 21
years of age. In the present case, the defendant asks this
court to suppress statements he made to police asserting that
his statements were not voluntary, and taken in violation of
Miranda v. Arizona. The defendant is also seeking to
suppress any evidence resulting from the taking of his pants
and underwear, and a DNA sample from him, on the grounds that
that he did not voluntarily consent to this.

FINDINGS
OF FACT

On June
4, 2015, commencing at approximately 12:29 AM, Detective
Brockway of the Maine State Police, questioned the Defendant
concerning his interactions with C.F. in Belgrade, earlier
that evening. The Detective and the Defendant sat in his
unmarked police car, in a public area, and the questioning
continued for one hour and thirty-seven minutes. The officer
and the Defendant were seated in the front compartment of his
vehicle. There were two other officers present, who remained
outside of the police car and did not participate in any of
this questioning. Detective Brockway was initially alerted by
one of the officers that the defendant appeared to be
"cognitively slow". Detective Brockway testified
that he utilized his training and questioned the Defendant in
a manner suggested for children, or those on the autism
spectrum. Before any questioning commenced, Detective
Brockway told the Defendant that he was free to go, that he
did not have to answer questions, and that no matter what
happened, the Defendant was not going to be arrested that
night. In fact, Detective Brockway told the Defendant that he
was free to go at least four times during the questioning,
and that he was not going to be arrested that night, on at
least three occasions. The Defendant was also informed that
the doors of the vehicle were unlocked. The Defendant's
mother and sister were also present on the scene during the
questioning.

The
Defendant was further advised that if he answered questions
that he should tell the truth, and that if he did not know
the answer or did not understand the question asked, he
should answer accordingly. The Defendant was told by the
Detective that he was not there to judge the Defendant. The
Defendant was conversant, and was able to describe his normal
routine, including his prior school history. During the
course of the discussion, the detective remained calm and
non-confrontational, though the detective was persistent in
his questioning, advising the Defendant that "he was
leaving stuff out", and that "he knew a fair amount
about what had happened", and encouraged the Defendant
to be truthful by stating "lets get it all out
tonight". Notably, at no time did the officer tell the
Defendant what the facts were, or directly or indirectly what
he believed the Defendant had done. He persisted with
questioning, and gradually the Defendant provided more detail
as to what had occurred that evening. At no time did
Detective Brockway raise his voice, or act in an accusatory
manner. He remained calm and non-confrontational throughout.

The
Defendant told Detective Brockway that he had come to know
C.F through his cousin, who goes to school with C.F.
Defendant and C.F. had corresponded on Facebook and exchanged
approximately 50 messages in which the Defendant flirted with
her and talked about his desire to meet in person. The
Defendant and C.F. met for the first time on May 31, 2015,
and did not meet again until June 3, 2015, the date in which
the alleged incident is asserted to have taken place. On that
day the Defendant and C.F. exchanged messages on Facebook
about meeting later that day at "Maine-ah's" a
roadside snack shack on the Smithfield Road in Belgrade. This
is a rural location which serves fast food with a picnic
table for patrons to use. There is a porta-potty on the
premises. They arrived there in the early evening. Both
walked a significant distance to the meeting place. At the
time of their meeting, the snack shack was closed and they
were alone. The Defendant and C.F. engaged in conversation
which led to hugging and kissing. The Defendant brought a
bottle of Gatorade from home which also contained alcohol.
C.F. and the Defendant both drank from this bottle. The
hugging and kissing occurred in various places on the
premises, including inside a building and inside the
porta-potty. The Defendant ultimately stated that inside the
porta-potty, the physical contact increased, resulting in
sexual touching, oral sex and sexual intercourse. Afterward,
the Defendant and C.F. remained inside the porta-potty until
they heard voices outside looking for them.

Toward
the end of the Detective's questioning, the Defendant was
asked to allow a DNA swab on the inside of his cheek. The
Defendant agreed and stated that he did not have any
questions, and in fact offered to provide another DNA sample
if needed. The Detective stepped outside of his vehicle and
briefly conversed with another officer. When he returned, he
asked the Defendant for permission to take his pants and
underwear, in case they contained evidence. The Defendant
replied that they could have his underwear, but that he did
not want to give up his pants. The Detective explained that
he would assist him in getting another pair of pants to wear,
which seemed to mollify the defendant somewhat. He agreed to
allow the taking of both articles of clothing. This
permission was given orally, and later in writing as the
Defendant signed a consent statement. The questioning ended
at 2:07 AM, or approximately one hour and thirty-eight
minutes after it started.

DISCUSSION

We
first examine whether Detective Brockway's questioning of
the defendant constituted a custodial interrogation requiring
a Miranda warning.

"A
person is not subject to formal arrest may be in custody if a
reasonable person standing in the shoes of the defendant
would have felt he or she was not at liberty to terminate the
interrogation and leave or if there was a restraint on
freedom of movement of the degree associated with a formal
arrest. This test is an objective one, and we have stated
that in analyzing whether a defendant is in custody, a court
may consider the following factors:

1) The locale where the defendant made the statements; 2) The
party who initiated the contact;

3) The existence or non-existence of probable cause to arrest
(to the extent communicated to the defendant)

4) Subjective views, beliefs/or intent that the police
manifested to the defendant to the extent they would affect a
reasonable person in the defendant's position would
perceive his freedom to leave;

5) Subjective views or beliefs that the defendant manifested
to the police, to the extent the officer's response would
affect how a reasonable person in the defendant's
...

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